Petitions to watch | Conference of 01.07.11

Posted Fri, January 7th, 2011 9:44 am by Christa Culver

We are reposting this edition of Petitions to watch,which features cases up for consideration at the Justices January 7 conference. These are petitions raising issues that Tom has determined to have a reasonable chance of being granted, although we post them here without consideration of whether they present appropriate vehicles in which to decide those issues

Docket: 09-958Issue(s): (1) Whether Medicaid recipients and providers may maintain a cause of action under the Supremacy Clause to enforce 42 U.S.C. § 1396a(a)(30)(A) of the Medicaid Act by asserting that the provision preempts a state law reducing reimbursement rates; and (2) whether a state law reducing Medicaid reimbursement rates may be held preempted by Section 1396a(a)(30)(A) based on requirements that do not appear in the text of the statute.

CVSG Information:

Docket: 09-1158Issue(s): Whether Medicaid recipients and providers may maintain a cause of action under the Supremacy Clause to enforce § 1396a(a)(30)(A) by asserting that the provision preempts a state law reducing reimbursement rates.

Docket: 10-283Issue(s): Whether Medicaid recipients and providers may maintain a cause of action under the Supremacy Clause to enforce § 1396a(a)(30)(A) by asserting that the provision preempts a state law reducing reimbursement rates.

Certiorari stage documents:

Iron Thunderhorse v. Pierce

Docket: 09-1353Issue(s): Whether the court of appeals misinterpreted the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. Â§ 2000cc et seq., to require only a minimal showing that a prison grooming rule which concededly imposes a substantial burden on religious exercise is the â€œleast restrictive means of furthering [a] compelling governmental interest.â€

Docket: 09-1403Issue(s): (1) Whether the Fifth Circuit correctly held that plaintiffs in securities fraud actions must not only satisfy the requirements to trigger a rebuttable presumption of fraud on the market, but must also establish loss causation at class certification by a preponderance of admissible evidence without merits discovery; (2) whether the Fifth Circuit improperly considered the merits of the underlying litigation when it held that a plaintiff must establish loss causation to invoke the fraud-on-the-market presumption.

CVSG Information:

Depee v. Mahach-Watkins

Docket: 10-151Issue(s): Whether, when a civil rights plaintiff seeks substantial money damages but receives only nominal damages, a court may award attorneyâ€™s fees under 42 U.S.C. Â§ 1988, notwithstanding the failure of the litigation to achieve a significant public benefit such as declaratory, injunctive, or class relief.

Certiorari stage documents:

Experian Information Solutions, Inc. v. Pintos

Docket: 10-251Issue(s): Whether the court of appeals erred in holding that 15 U.S.C. Â§ 1681b(a)(3)(A) authorizes creditors to obtain a consumer's credit report to assist in collecting the consumer's debt only for transactions initiated by the consumer.

Missouri v. Kruse

Docket: 10-264Issue(s): Under the Fourth Amendment, is it reasonable for police officers to make a limited entry onto an individual's curtilage for the purposes of covering the rear exit of the home, while other officers conduct a "knock and talk" at the front door to investigate their probable-cause belief that the subject of an active arrest warrant is inside the home?

Lawnwood Medical Center, Inc. v. Sadow

Docket: 10-371Issue(s): (1) Whether punitive damages for intentional harm are exempt from the Court's guidepost analysis to determine whether an award of punitive damages is unconstitutionally excessive; (2) whether state law can exempt punitive awards for certain conduct from the guidepost analysis mandated by the Constitution; and (3) whether a court may rely on the defendant's wealth - rather than awards in similar cases or comparable legislative penalties - as an objective indicator of the constitutionality of a punitive award when actual damages are small or nominal.

Certiorari stage documents:

Wrisley v. Crowe

Docket: 10-376Issue(s): (1) Whether police are subject to liability under the Fifth Amendment for allegedly coercive questioning used only in pre-trial proceedings that do not impose criminal penalties; (2) whether police are subject to liability for questioning excluded under the Fifth Amendment and not rising to a level that "shocks the conscience" under the Fourteenth Amendment; and (3) whether police can "shock the conscience" for purposes of liability under the Fourteenth Amendment by non-tortious conduct that causes or threatens no physical harm.

Certiorari stage documents:

McDonough v. Crowe

Docket: 10-377Issue(s): (1) Whether use of a suspect's coerced testimony in a judicial proceeding short of a criminal trial in which penalties may be imposed violates the Fifth Amendment; (2) whether police interview techniques that have garnered judicial approval (such as lying) constitute coercion under the Fifth Amendment when applied to a minor; (3) whether a police officer's solely verbal conduct that does not involve any threat of harm constitutes a violation of the Fourteenth Amendment's guarantee of substantive due process; (4) whether a police officer's conduct must "shock the conscience" to violate the Fourteenth Amendment's guarantee against deprivation of familial companionship; and (5) whether the Ninth Circuit departed from established principles of qualified immunity in holding that a police officer may be liable under 42 U.S.C. Â§ 1983 for interrogating a minor using solely verbal techniques that did not involve any threats.

Certiorari stage documents:

Blum v. Crowe

Docket: 10-420Issue(s): (1) Whether a private psychologist whom police ask to consult on an interrogation of a suspect in a murder investigation is entitled to assert qualified immunity pursuant to Richardson v. McKnight; (2)whether the holding and standards of Richardson should be clarified or reexamined; (3) whether the tactics employed during plaintiffs' interrogations violated the Fourteenth Amendment "shocks the conscience" standard; and (4) whether the law was clearly established that the tactics employed during plaintiffs' interrogations were a violation of the Fourteenth Amendment.

Certiorari stage documents:

Docket: 10-382Issue(s): Whether the attorney-client privilege entitles the United States to withhold from an Indian tribe confidential communications between the government and government attorneys implicating the administration of statutes pertaining to property held in trust for the tribe.

Certiorari stage documents:

NIBCO, Inc. v. Rivera

Docket: 10-383Issue(s): (1) Whether a court of appeals must conduct a comparative juror analysis when reviewing a claim under Batson v. Kentucky, even though the comparative analysis was neither raised before nor considered by the trial court below; and (2) whether a court of appeals that identifies a suspected Batson problem based on a comparative juror analysis never considered by the trial court can vitiate a trial without remanding to allow the trial court to consider the new arguments and evidence in the first instance.

Certiorari stage documents:

Schaefer v. McHugh

Docket: 10-404Issue(s): Whether a party challenging an agency's refusal to follow its own regulations under United States ex rel. Accardi v. Shaughnessy also bears the burden of establishing prejudice from that refusal.

Certiorari stage documents:

Miller-Goodwin v. City of Panama Beach, Florida

Docket: 10-471Issue(s): Does a prima facie case of intentional gender discrimination require a judicial finding that a person of the opposite gender engaged in â€œnearly identicalâ€ misconduct but received more favorable treatment than the plaintiff?

Certiorari stage documents:

Board of County Commissioners of Boulder County, Colo. v. Rocky Mountain Christian Church

Docket: 10-521Issue(s): Whether the Equal Terms and Unreasonable Limitations provisions of the Religious Land Use and Institutionalized Persons Act of 2000 expand the scope of legal protection granted to religious exercise beyond that established by the First Amendment and thus violate the Establishment Clause and Section 5 of the Fourteenth Amendment.

Florida v. Ross

Docket: 10-550Issue(s): Whether the provision of complete and accurate Miranda warnings during a custodial interrogation, accompanied by a written acknowledgement and waiver, affords a presumption of admissibility of post-warning statements when the initial, pre-warning statements were not coerced but were voluntarily produced and when there is no evidence of police misconduct.

Certiorari stage documents:

Note: John Elwood, a regular contributor to the blog, serves as counsel to the petitioner. Although Amy Howe, the editor of the blog, served as a judge on one of Johnâ€™s moots before the argument, Goldstein, Howe, & Russell was not otherwise involved in the case.Docket: 10-568Issue(s): Whether the First Amendment subjects state restrictions on voting by elected officials to strict scrutiny, the balancing test of Pickering v. Board of Education, or rational-basis review.

Certiorari stage documents:

Kraft Foods Global, Inc., Oscar Mayer Foods Division v. Jeff Spoerle

Docket: 10-580Issue(s): Whether Section 203(o) of the Fair Labor Standards Act, which allows unions and employers to resolve through collective bargaining agreements the issue of whether employees must be compensated for time spent changing clothes, preempts state minimum-wage and overtime laws requiring employees to be compensated for such time.

Certiorari stage documents:

DISCLOSURE: Akin Gump and Howe & Russell represent parties in the three cases below; the cases are listed here without regard to their chances of being granted.

Grant County Black Sands Irrigation District v. U.S. Bureau of Reclamation

Note: Howe & Russell represent the petitioners in this case.Docket: 10-116Issue(s): Whether the government may deprive landowners of the ability to acquire a permanent water right and other reclamation law entitlements by limiting landowners to perpetually extending ten-year â€œwater utilityâ€ contracts under 43 U.S.C. Â§ 485(e).

Gao v. Holder

Note: Howe & Russell and Akin Gump represent the petitioner in this case.Docket: 10-130Issue(s): 1) Whether the category of â€œparticularly serious crimesâ€ is
limited to â€œaggravated feloniesâ€ under 8 U.S.C. Â§ 1231(b)(3)(B)(ii) and 8 U.S.C. Â§ 1158(b)(2)(A)(ii) with the sole
exception that â€“ with respect to asylum â€“ the Attorney General may â€œdesignateâ€ additional offenses â€œby regulationâ€; and 2) whether the government must make an individualized
determination that an individual poses â€œa danger to the communityâ€ before denying her withholding of removal or asylum under 8 U.S.C. Â§ 1231(b)(3)(B) (for withholding) or 8 U.S.C. Â§ 1158(b)(2)(A)(ii) (for asylum).

Certiorari stage documents:

Castro v. United States

Note: Howe & Russell and Akin Gump represent the petitioner in this case.Docket: 10-309Issue(s): (1) Whether the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. Â§ 2680(a), applies to acts by federal employees that exceed the scope of their statutory or constitutional authority; and (2) even if governmental conduct would otherwise fit within the discretionary function, whether the law enforcement proviso of the Federal Tort Claims Act, 28 U.S.C. Â§ 2680(h) -- which authorizes suits based on an enumerated list of common-law torts if those torts are committed by federal law enforcement officers -- nonetheless permits a plaintiff to proceed.

Certiorari stage documents:

Note: Goldstein, Howe and Russell P.C. represents the respondents IMS Health, SDI, and Verispan, in this case.Docket: 10-779Issue(s): Whether a law that restricts access to information in nonpublic prescription drug records and affords prescribers the right to consent before their identifying information in prescription drug records is sold or used in marketing violates the First Amendment.

If any other paid petitions are re-distributed for the January 7 conference, we will add them below as soon as their re-distribution is noted on the docket.

Swarthout v. Cooke

Docket: 10-333Issue(s): Whether a federal court may grant habeas corpus relief to a state prisoner based on its view that the state court erred in applying the state-law standard of evidentiary sufficiency governing state parole decisions.

Certiorari stage documents:

Alderman v. United States

Docket: 09-1555Issue(s): Whether Scarborough v. United States (1977) recognizes a distinct Commerce Clause authority, beyond the three categories recognized in United States v. Lopez (1995), United States v. Morrison (2000), and Gonzales v. Raich (2005), such that a federal statute which â€œcannot be justified as a regulation of the channels of commerce, as a protection of the instrumentalities of commerce, or as a regulation of intrastate activity that substantially affects interstate commerce,â€ may be sustained based on a â€œminimal nexusâ€ between the activity regulated and interstate commerce.

Certiorari stage documents:

Docket: 10-209Issue(s): (1) Whether a defendant seeking habeas is entitled to relief based on ineffective assistance of counsel
where counsel’s deficient advice caused the defendant to reject a plea bargain in which the defendant had no vested right, and where the rejection did not deny the defendant a fair trial. (2) What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures.

Certiorari stage documents:

Docket: 10-444Issue(s): Can a defendant who validly pleads guilty assert a claim of ineffective assistance of counsel by alleging that, but for counsel's error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms?
What remedy, if any, should be provided
for ineffective assistance of counsel during plea bargain
negotiations if the defendant was later convicted and sentenced
pursuant to constitutionally adequate procedures?

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.